Judgment:
Oral Order:-
Per Shri S.R. Khanzode, Honble Presiding Judicial Member
This appeal is directed against the order/award dated 25/08/2005 passed in consumer complaint no.145/2008, Mr.Ramesh Gulabrao Maraneand Ors. v/s. M/s. Gaikwad Associates, by District Forum, Pune (Forum below in short).
Original complainants/respondent agreed to purchase a residential flat bearing no. A-4, as more particularly described in consumer complaint, for a total consideration of Rs. 4,77,960/- plus incidental and legal expenses etc. quantified at Rs.35,000/- from appellant/org.opp.party. A dispute arose since possession of the said flat was not handed over to the complainant despite substantial payment of Rs. 3,21,000/-. Consumer complaint accordingly was filed and it came to be settled in favour of complainant by impugned award. The impugned award reads as under:-
â1. Complaint is partly allowed.
2. The complainants are directed to pay to the opposite party, the balance consideration amount of Rs.1,56,960/- within a period of 15 days from the date of receipt of this order.
3. On receipt of the amounts, as ordered above from the Complainants, thee opposite party is hereby directed to hand-over vacant 7 peaceful possession of the flat bearing No.a-4, admeasuring about 567 sq.ft. along with attached terrace, on the first floor in the âAâ wing of the building known as âMai Smruti Apartmentsâ, situated on the property bearing Survey No. 50/5/3+4+5+6+7+8+9, Mouje Vadgaon budruk, Pune; complete in all respects to the complainants, within a period of two months from the date of receipt of balance consideration amount from the complainants.
It is made clear that in case of default on the part of the complainants to pay the balance consideration amount to the opposite party within the stipulated period, the order as to handing over the possession of the flat shall automatically stands cancelled and in that event the opposite party shall be liable to refund to the complainants jointly, an amount of Rs.3,21,000/- together with interest thereon @9% p.a. as from the date on which he received the sum from the complainants till realization of the amounts by the complainants, within a period of two months thereafterâ.
Feeling aggrieved thereby the org.opp.party has preferred this appeal.
We heard Adv.Shri S.B.Prabhavalkar for the appellant and Adv.Shri Rahul Gandhi for the respondent.
It is revealed from the impugned order/award that the appellant/org.opp.party refused to accept the notice sent by the org.complainant and therefore, it proceeded ex-parte. Thereafter, complainant was called to file affidavit in support of claim and verify the documents. The Forum below in the impugned order observed that accordingly documents were verified and claim affidavit was filed. However, before us both the parties admitted that there is no claim affidavit as such filed by the complainant and the complainant relied upon affidavit (Bombay affidavit filed along with the complaint by way of verification). Said affidavit cannot be a substituted for claim affidavit. Documents referred and filed in support of complaint are to be tendered as evidence so that they can be read and appreciated. That is why there is a provision in Consumer Protection Act, 1986 to file claim affidavit in order to tender in evidence the documents and prove relevant facts on affidavits. Though the matter was ex-parte before the Forum below, before settling the dispute as per impugned award it ought to have considered objectively all the aspects, which are in nature of granting, decree for specific performance. No doubt the remedy before consumer Fora is an additional remedy but certain legal principals relating to grant of specific performance and Section 148 of Consumer Protection Act, 1986 considering the dispute are never to be ignored. This is not done by the Forum below. The ratio decidanddi in the case of Balraj Taneja and othrs V/s. Sunil Madan 1999 (7) supreme 27 (SC) is very much applicable even to the order/award passed in the instant case. Forum ought not to proceed to pass impugned award, even in an ex-parte case and in absence of written statement, blindly. Only on being satisfied that there is no fact which need to be proved(avoiding technicalities of Evidence Act not to defeat justice) on account of deemed admissions, the Forum below could proceed to pass an award. Considering the nature of dispute, we find it would be just and proper if the matter is remitted back to the Forum below, whereby both the parties to get reasonable opportunity to put their respective cases and dispute can be settled in a just manner properly. Hence, we pass following order:-
Order:
1. Appeal is allowed.
2. Impugned order dated 25/08/2008 is set aside.
3. Matter is remitted back to the Forum below with a direction to give opportunity to both the parties to file the written statement and rejoinder to it, if any, and thereafter, allowing them to adduce evidence per Section 13(4) of the Consumer Protection Act, 1986, settle the dispute as per law.
4. Both the parties shall appear before Forum below on 24/06/2009. The Forum below shall expedite the hearing of the matter and preferably shall decide the consumer complaint within period of three months from the date of appearance before the Forum below.
4. Amount deposited by the appellant at the time of filing the appeal be returned to them.
5. No order as to costs.
6. Copies of the order herein be furnished to the parties.